Terms and Conditions

LBA Services

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1. DEFINITIONS.

“Change Order” means a written and signed document modifying an order to make a material change in the work to be performed, an adjustment to the Contract Fee, or a change in the time allowed for completion of the Work on a Project.

“Contract Documents” means this General Contract and its Terms and Conditions, construction drawings and specifications relating to the design and construction of the Project, any addenda or modifications to either the Contract or the drawings (i.e., Change Orders). Contract Documents shall include any documents listed in the Contract and drawings, regardless of whether the Owner actually receives them.

“Contractor” means LBA Air Conditioning, Heating & Plumbing.

“Deliverable” means any item delivered or produced by Contractor in connection with the Work of this Contract.

“Owner” means the person or company for whom the Work is being completed.

“Property” means the real property of the Owner, on which the construction of the Project will occur.

“Project” means collectively the Property and the improvements to the Property as performed by the Contractor under the terms of this Contract.

“Substantial Completion” means the stage when the Work is sufficiently complete in accordance with the Contract Documents such that the Owner may occupy the Project and utilize the Work for its intended use.

“Work” means the demolition, labor, materials, equipment, and services to be provided by Contractor under the terms of this Contract, as required by the Contract Documents.

2. THE WORK.

2.1. Scope of Work. The Work to be provided by Contractor under this Contract is set out in the Proposal Specifications and Estimate. Contractor agrees to provide its expertise, personnel, and the professional, technical, project management, and other services necessary to carry out the Work required by this Contract.

2.2. Changes in Scope or Additional Services. Owner may request changes to or additions in the Work after execution of the Contract, without invalidating this Contract, by way of a Change Order Request. The Change Order Request shall state the scope of the changed or additional work that the Owner desires the Contractor to provide.

Following the issuance of a Change Order Request and during any negotiation of the pricing of the work described therein, Contractor will continue to provide the Work, unless otherwise directed by Owner in writing. The Change Order will become binding once signed. No other modifications to this Contract will be binding unless agreed to by both parties.

2.3. Acceptance of the Work. Items needing immediate attention will be addressed promptly by Contractor upon notice by the Owner. Contractor will correct any items identified which do not conform to the Contract Documents within 14 Business Days from Contractor’s receipt of notice. Owner will re-inspect the corrected Work upon notice from Contractor that the items identified have been corrected. Re-inspection of the Work by Owner shall occur within 5 Business Days after Owner receives notice that the items have been corrected. All items corrected by Contractor and re-inspected by Owner shall be deemed substantially completed and accepted by Owner.

3. COMPENSATION AND INVOICING.

3.1. Compensation. The Owner shall pay Contractor the cost of the Work which is set out in the Proposal Specifications and Estimate. On applicable invoices issued to Owner for materials or Deliverables purchased by Contractor, Contractor will include taxes for the Work and/or Deliverables as part of the invoice.

3.2. Invoicing, Itemization, and Payment Procedures. Invoices shall be promptly submitted and shall be paid per the payment terms but no later than thirty (30) days from the date Contractor submits the invoice to the Owner. Contractor reserves all rights to lien property for nonpayment. Liens filed will be within the guidelines and rules set forth by the state of which the Work is done.

4. TERMINATION

4.1. Owner Termination for Cause. Owner may terminate this Contract by written notice to Contractor if Contractor materially breaches this Contract and does not undertake to cure the material breach to the reasonable satisfaction of Owner within ten (10) Business Days after Owner delivers the written notice of breach, unless Contractor demonstrates to Owner that the breach cannot reasonably be cured within the specified cure period. In such case, Contractor will not be in material breach so long as Contractor has promptly commenced and diligently pursued the cure upon receipt of the approval.

4.2. Contractor Termination for Cause. Contractor may terminate this Contract if Owner fails to make a payment that remains uncured for more than seven (7) Business Days after Owner’s receipt of Contractor’s written nonpayment notice. If the Owner has materially breached any other term of this Contract, Contractor may, after giving the Owner seven (7) Business Days’ notice and an opportunity to cure, terminate this Contract on the basis of such material breach. If owner does not accept a Change Order, then Contractor may terminate this Contract immediately. In the case of a termination by Contractor under this Section, Owner shall pay Contractor for all Work provided to or for the Project as of the date of the termination, including for any Deliverables, specialty items or products ordered for the Project, and materials stored on the Job Site.

5. WARRANTIES AND REMEDIES.

5.1. General Warranties. The Work will be provided in a timely, professional and workmanlike manner. Contractor will comply with applicable laws, codes, ordinances, rules and regulations of local, state, and federal governments and agencies in effect on the date this Contract is signed by Contractor.

5.2. Limited Warranty. Conditioned upon payment in full of all amounts due to Contractor, Contractor warrants that all labor will be free of defects for a period of one (1) year from the date of Substantial Completion, subject to the manufacturer’s warranty of parts and equipment. Contractor’s warranty is limited to repair or replacement, at Contractor’s discretion and excludes incidentals or consequential damages. This warranty specifically excludes cracking, etc. of any concrete, drywall, plaster, caulking, sealant, tile, grout or any other material subject to movement of any kind.

5.3. Permits; Licenses; Rules. Contractor will obtain and maintain as part of the Scope of Work, if applicable, all approvals, permissions, permits, professional or business licenses, and other forms of documentation required for performance of its Work at the Project. Owner reserves the right to request and review all Contractor applications, permits, and licenses.

6. MUTUAL REPRESENTATIONS AND WARRANTIES.

6.1. Formation; Authorization; Litigation. Each party represents and warrants that:

a. If it is a corporation or other legal entity, it is validly existing, in good standing, and is qualified to do business in the jurisdiction where it will conduct business under this Contract;
b. This person that signed this Contract has the authority to do so.
c. No claims, actions, or proceedings are pending or, to the knowledge of the party, threatened against or affecting the party that may, if adversely determined, reasonably be expected to have a material adverse effect on the party’s ability to perform its obligations under this Contract.

6.2. No Violations; Approvals. Each party represents and warrants to the other party that the execution, delivery, or performance of this Contract will not:

a. Violate any existing law, regulation, order, determination, or award of any governmental authority or arbitrator, applicable to the party;
b. Violate or cause a breach of the terms of the party’s governing documents or of any material agreement that binds the party; and
c. Require approval or filing with any governmental authority.

6.3. Disclaimer of Warranties. The warranties contained in Sections 5 and 6, together with all the express warranties contained in any Order, set out the entire statement and responsibilities of the parties with respect to warranties. To the maximum extent allowable by law, Contractor specifically disclaims any other warranty not contemplated in this Contract.

7. LIMITATION OF LIABILITY. The Parties agree to waive claims against each other for consequential damages for any cause of action arising out of this Contract. Owner agrees to waive damages, including but not limited to the Owner’s loss of use of the Project, any rental expenses incurred, loss of income, profit, or financing related to the Project, as well as the loss of business, loss of financing, loss of profits not related to this Project, loss of reputation, or insolvency. This limitation does not apply to (i) any gross negligence, willful misconduct, or fraudulent act or omission; (ii) any intentional breach of compliance with laws, permits, rules or regulations, bodily injury or property damage; or (iii) any damages resulting from personal injury or property damage. Notwithstanding anything in this Contract to the contrary, Contractor’s total aggregate liability arising out of or related to this Contract under any theory of law will not exceed the total cost of the Project, including all change orders.

8. INSURANCE. Contractor will at its own expense, obtain and maintain during the construction of the Project and continuing for one year after Substantial Completion the applicable minimum insurance coverage against liability arising in any way under this Contract.

9. DISPUTE RESOLUTION. The parties agree to binding arbitration for any dispute arising out of this Contract or any claim arising under any federal, state, or local statutes, laws, or regulations. The arbitration will be conducted in accordance with the arbitration rules promulgated under the American Arbitration Association (AAA) Rules for Construction Industry Arbitration of Disputes then prevailing. The arbitrator will be selected in accordance with those Rules. The arbitrator(s) will be required to furnish, promptly upon conclusion of the arbitration, a written decision. The
arbitration decision will be final and binding on the parties, and the decision may be enforced by either party in any court of competent jurisdiction. Each party will pay its own attorney’s fees and costs, and the attorney’s fees and costs of the Arbitrator and Arbitration will be paid equally by the parties. The processes set forth in this Section do not apply to seeking injunctive relief. No agreement achieved under this dispute resolution process will be binding on either party unless set forth in writing and executed by both parties. During the pendency of any dispute, Contractor has the option
to cease the Work. Owner shall continue making payments to Contractor under the terms of this Contract if a dispute arises concerning the Work, unless work is ceased.

10. GENERAL.

10.1. Delays. In the event of any Delay, Contractor will as soon as practicable after the occurrence of the Delay, notify Owner. The notice will include specific details of the Delay including the estimated impact on the applicable timetable under the Contract.

10.2. Force Majeure. Notwithstanding anything to the contrary contained herein, Contractor shall not be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, pandemic, war, or civil unrest. A delay in the completion of the Work which is due to a Force Majeure event may be cause for extending the Contract Time and Substantial Completion date for the Project or increase labor costs. The parties must discuss an equitable extension, generally day-for-day, of the applicable Contract Time taking into account not only the time of the Force Majeure event, but also its reasonable impact on Contractor’s ability to complete the Work. Contractor will also have a right to a modification of the hourly labor rate, Contract Sum or reimbursement of additional Fees as a result of any Force Majeure event. The Owner will proceed in good faith on the issue of additional Fees.

10.3 COVID-19. The parties acknowledge that the potential effects of the coronavirus disease (“COVID-19”) pandemic on the construction industry and the performance of construction projects are not yet fully known and are beyond the control of the parties. The parties agree that delays resulting from the effects of the COVID-19 pandemic are beyond the control of the parties, and if such delays occur, Contractor will be granted a reasonable extension of time and an equitable adjustment in the contract amount for the additional costs incurred by Contractor resulting from the COVID-19 pandemic.

10.4. Legal Fees. If the prevailing party rejected a written settlement offer that exceeds its recovery, the offering party will be entitles to payment of its reasonable legal fees and costs, including payment of that a party’s share of the Arbitrator’s attorney’s fees and the AAA’s fees and costs.

10.5. Notices. During dispute, except as otherwise provided in this Contract, each party must provide notices, requests, and other communications to the other party in writing by (a) certified mail, hand delivery, or delivery by a reputable overnight carrier service, in each case addressed as follows:

Owner: Listed in Proposal Contractor:

Specifications and Estimate LBA Air Conditioning, Heating & Plumbing

Attn: Brad McGee
6850 W. 47 th Terrace
Mission, KS 66203

AND TO:
Pascale Henn, Esq.
Business Law Advisors, LLC
8700 Monrovia
Lenexa, Kansas 66215
Email: [email protected]

or (b) to another physical address, as each party may designate for itself by like notice given in accordance with this Section. The date of notice will be the day the notice is delivered.

10.6. Assignment. Neither party may assign its rights or delegate its obligations under this Contract in whole or in part without the other party’s prior written consent, which consent will not be unreasonably withheld. This Contract is binding on and enforceable by each party’s permitted successors and assignees. Any assignment in violation of this Section is null and void.

10.7. Governing Law and Forum Selection. This Contract will be governed by and interpreted in accordance with the internal substantive laws of the state of Kansas. The parties agree that all actions and proceedings arising out of or related to this Contract will be brought only in a state court located in Johnson County, Kansas or in the United States District Court for the District of Kansas. Each party agrees that jurisdiction is proper in Kansas and submits to the jurisdiction of both courts; they further agree that venue is proper in Olathe, Kansas and the United States District
Court for the District of Kansas.

10.8. Waiver and Severability. The waiver of a breach of any term or condition of this Contract will not constitute the waiver of any other breach of the same or any other term. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving party. If any provision of this Contract is held unenforceable, the remaining provisions will remain in effect and the parties will negotiate in good faith a replacement provision that is substantively comparable.

10.9. Survival. The parties’ obligations and rights under the following Sections and subsections will survive expiration or termination of this Contract for any reason: Compensation and Invoicing, Termination, Warranties and Remedies, Intellectual and Other Owner Property, Limitation of Liability, Dispute Resolution, and Governing Law. Expiration or termination of the Contract will not affect the Owner’s obligation to pay Contractor as set forth herein.

10.10. Contract Interpretation. Section numbers and captions are provided for convenience of reference and are not binding. Any references to a particular Section of this Contract will include all subsections. This Contract will not be construed against either party due to authorship. Except for indemnification rights and obligations, nothing in this Contract gives anyone, other than the parties and any permitted assignees, any rights or remedies under this Contract.

10.11. Entire Agreement; Order of Precedence. This Contract and the Contract Documents, including all other documents that are Exhibits to this Contract, constitute the parties’ complete agreement with respect to the subject matter of this Contract and supersede all prior proposals, understandings, estimates, orders, quotes, bids and contracts, whether oral or written, between the parties, including but not limited to any non-disclosure agreements previously entered into between the parties. This Contract may not be amended or modified except in writing, signed
by an authorized representative of each party.

10.12. Statutory Notices.

Missouri law requires the following notices be provided to you.

SECTIONS 436.350 TO 436.365 OF MISSOURI REVISED STATUTES PROVIDE YOU WITH CERTAIN RIGHTS IF YOU HAVE A DISPUTE WITH A CONTRACTOR REGARDING CONSTRUCTION DEFECTS. EXCEPT FOR CLAIMS FILED IN SMALL CLAIMS COURT, IF YOU HAVE A DISPUTE WITH A CONTRACTOR, YOU MUST DELIVER TO THE CONTRACTOR A WRITTEN CLAIM OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR THE OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE CONTRACTOR. READ THIS NOTICE CAREFULLY. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER SECTIONS 436.350 TO 436.365 WHICH MUST BE OBEYED IN ORDER TO PRESERVE YOUR ABILITY TO FILE A LAWSUIT. OTHER THAN REPAIRS TO WORK DONE BY THE CONTRACTOR THAT ARE NECESSARY TO PROTECT THE LIFE, HEALTH, OR SAFETY OF PERSONS LIVING IN A RESIDENCE, OR TO AVOID ADDITIONAL SIGNIFICANT AND MATERIAL DAMAGE TO THE RESIDENCE PURSUANT TO SUBSECTION 10 OF SECTION 436.356, YOU MAY NOT INCLUDE IN CLAIMS AGAINST YOUR CONTRACTOR THE COSTS OF OTHER REPAIRS.

NOTICE TO OWNER

FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC’S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT TO CHAPTER 429, RSMO. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR “LIEN WAIVERS” FROM ALL PERSONS SUPPLYING
MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.

Kansas law requires the following notices to be provided to you:

KANSAS LAW CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST THE CONTRACTOR WHO CONSTRUCTED YOUR HOME. NINETY DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO THE CONTRACTOR A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND
PROVIDE YOUR CONTRACTOR THE OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE CONTRACTOR. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER STATE LAW, AND FAILURE TO FOLLOW THEM MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT.

UNLESS SPECIFICALLY STATED OTHERWISE, THE FOLLOWING STANDARD EXCLUSIONS APPLY

Plumbing and site work: Fire protection, Irrigation piping, Wall layout, Asbestos abatement, Bonds, Dewatering, Floor x-ray, Geotech engineering, Final grading, sodding &/or seeding, Electrical work (power &/or control), Prevailing wages, Liquidated damages, Prepping, priming &/or painting, Premium &/or overtime labor, Repairs or modifications to any existing plumbing systems, Repairs to any finishes (drywall, paint, wallcovering, floorcovering, etc.), Repairs or modifications to any underground utilities cut or damaged as a result of sawcut or excavation, Roofing &/or roof patching, Dowling or patching of concrete floor slabs, Site work, Site utilities, Temporary utilities, Gas service &/or gas meter piping, Tap fees, Line development fees, Meter set fees, Special permits or inspections, Third party testing or inspections, Rock excavation, removal &/or haul off, Spoils removal &/or haul off, Erosion control, Temporary facilities, Dumpsters &/or dumpster fees, Traffic control, Disposers, Water filters &/or softeners, warranty for piping is exterior walls against freezing, Soils testing and Imported fill materials.

HVAC: Fire protection &/or piping, Fire alarm &/or control wiring unless noted otherwise, Asbestos abatement, Bonds or bond fees, Energy Code Compliance, Floor x-ray, Framed openings, Interlock wiring, Liquidated damages, Prepping, priming &/or painting, Power wiring, Prevailing wages, Premium time or afterhours labor, Repairs to any finishes (drywall, paint, wallcovering, floorcovering, etc.), Roofing &/or roof patching, Smoke detectors, Fire dampers, smoke dampers &/or fire/smoke dampers unless shown on the plans, Standing seam metal roof curbs, Structural engineering, bracing or modification, Equipment screens that enclose more than a single unit, Ductwork other than drops into space, Wall layout, Temporary conditioning &/or services, Duct cleaning, Duct coordination drawings, Engineering and Dumpsters &/or dumpster fees.

No modifications, additions, or alterations as may be deemed necessary to comply with International Energy Code are included.

If large amount of rock or unstable soils are discovered during excavation, it shall be removed and excavation shall be refilled to finish grade level on a time and material basis.

All proposals are good for a period of 30 days unless specified otherwise. Any breakout prices provided in relation to this proposal (verbal or written) are for accounting purposes only and CAN NOT be used as stand-alone sell prices unless specifically noted otherwise in writing from LBA.

Hard copy available on request. 

All proposals are good for a period of 30 days unless specified otherwise. Any breakout prices provided in relation to this proposal (verbal or written) are for accounting purposes only and CAN NOT be used as stand-alone sell prices unless specifically noted otherwise in writing from LBA.

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